From the WSJ Opinion Archives
AT WAR
'Lawfare' Over Haditha
The administration's domestic opponents play into the enemy's hands.
The unfolding investigation of last November's events in Haditha reveals much more about the Bush administration's critics than it does about the U.S. armed forces. Although the inquiry is ongoing, it appears that 24 unarmed Iraqi civilians were deliberately murdered, allegedly by American Marines seeking revenge for a fallen comrade. If true, the episode was a war crime, something that must be--and no doubt will be--severely punished. However, the administration's critics are already cynically leveraging the Haditha killings as a means of undercutting the president, heedless of the effect this may have on American national interests.
Here is an outline of the emerging anti-Bush thesis: Haditha was the fault not of a handful of Marines, but of an administration that has refused to honor international law. As support, critics point to the administration's refusal to grant Geneva Convention rights to al Qaeda or the Taliban, to the use of aggressive interrogation techniques to obtain intelligence from terrorist detainees, and to a determination not to treat these individuals as ordinary criminal defendants. All of this is claimed despite the fact that the most fundamental aspects of administration policy--that the U.S. is at war, that individuals captured in this war can be held without trial as "enemy combatants" or tried by a military commission--have been vindicated so far by the courts.
Nevertheless, the killings at Haditha and a handful of other incidents in which U.S. troops have violated the laws of war (and are in the process of being punished) are already being cited as evidence of a systematic problem with American forces abroad and American leadership at home. In fact, although scores of atrocities have been alleged in Iraq and Afghanistan, the vast majority have been false claims. Most recently, for example, charges that U.S. forces executed civilians during a March 15 night-time raid on an al Qaeda safe house in Ishaqi proved to be groundless.
To put things in perspective, it is worth noting that abuses and violations of the laws of war have occurred in every armed conflict in human history, regardless of how well-led or disciplined were the troops involved. Indeed, by the standards of past conflicts, U.S. forces in Iraq and Afghanistan have behaved in exemplary fashion, using force in combat with unprecedented precision, minimizing collateral damage and civilian deaths--often at risk to themselves and to their mission. In Iraq, this has been the case even though American forces are fighting in the toughest possible urban insurgency environment.
Overall, all U.S. forces, including the Marines, have used deadly force in a proportionate and discriminate manner, fully in accord with the laws and customs of war. By contrast, our enemies engage in war crimes on a daily basis as a matter of policy. For them, targeting civilians is not the exception but the rule--it is the essence of the "asymmetrical" warfare they practice.
Throughout history, irregular forces have used the surrounding civilian population in two distinct ways. First, guerrilla fighters do not wear uniforms or carry their arms openly--critical elements of lawful warfare--so as to hide among the civilian population. In effect, they use civilians as shields. Second, like the insurgents in Iraq, they seek to goad opponents into mistakenly, or deliberately, attacking civilians--as a means of mobilizing the population against the regulars. The killings at Haditha show how this strategy can work.
However, the advent of modern media coverage--coupled with a growing and valid concern among democracies about humanitarian norms during warfare--has provided a new tactical innovation, increasingly known as "lawfare." Al Qaeda and the Iraqi insurgents thus routinely claim that American forces systematically violate the laws of war by targeting civilians and abusing prisoners. These claims are not targeted at the Iraqi people (although similar claims regarding insults to Islamic believers are so directed) but at public and, especially, elite opinion in the U.S. and other democracies. With Vietnam as its model, the Iraqi insurgency well understands that it can win only by undermining America's political will to win, and the center of gravity in this conflict lies in Washington, not Baghdad or the Sunni Triangle.
These lawfare tactics have several other important consequences. If the Pentagon's investigation of Haditha was delayed, it was most likely because similar massacre allegations are made virtually every time American forces take to the field. The fact that, in Iraq, IED explosions are so often followed by insurgent attacks launched from civilian structures also clearly gave credence to the initial--and evidently incorrect--reports from Haditha. When civilian buildings are used in insurgent operations, civilians often are killed in the crossfire, and so the report that a number of civilians had been killed by small arms in Haditha would not have appeared exceptional to the U.S. commanders.
Ultimately, the Haditha incident must remind American policy makers--and the American people--of the challenges of modern warfare. Although the individual actions of U.S. forces on that day may have been exceptional, the surrounding circumstances are not--and our enemies will look more and more to such irregular tactics. The Pentagon's emphasis on exhaustively training American troops in the laws of war is a good first step. U.S. forces already are the best equipped and trained in history, and it is only through a constant emphasis on duty, discipline and American values that our armed forces will prevail in Iraq and similar conflicts.
At the same time, should the Haditha incident mature into a full-fledged war crimes drama prompting a premature U.S. withdrawal, the damage would not be limited to Iraq. If the U.S. cannot fight and win against a brutal urban insurgency in Iraq today, its ability to defeat any determined foe willing to sacrifice the civilian population in irregular warfare will be in question. This can only benefit the most vicious regimes and movements. The Bush administration's critics should pause a moment, and reflect, on whether this would really be worth it.
Messrs. Rivkin and Casey, lawyers in Washington, served in the Justice Department under Presidents Reagan and George H.W. Bush.
